FCC Fires First Volley in Bid to Close the Internet

WASHINGTON (CN) – The Federal Communications Commission issued a new proposal Thursday which begins the process of shifting internet regulation responsibility to the Federal Trade Commission – pushing open internet access closer to the chopping block.

In an 82-page rulemaking proposal, the FCC said it will now take comments from the public on its proposal following its 2-1 vote last month to begin unraveling the Title II designation currently applied to internet service providers, or ISPs.

FCC Chairman Ajit Pai’s predecessor Tom Wheeler made the designation in 2015. Under Title II, ISPs are considered common carriers – public utilities – and therefore must provide internet service in a way that ensures there are no “fast lanes” or “slow lanes” when it comes to access for consumers and providers alike.

But in the proposal, Pai’s FCC doesn’t agree and believes the public-utility classification is inaccurate.

The Telecommunications Act, where Title II is rooted, defines an information service as one capable of “offering, generating, acquiring, storing, transferring, processing, retrieving, utilizing or otherwise making information available via telecommunications, but does not include any use of any such capability for the management of a telecommunications service.”

According to the FCC, this language clearly defines the internet as an “information service” – as it was classified during the Clinton administration.

“In short, broadband internet access service appears to offer its users the “capability” to perform each and every one of the functions listed in the definition – and accordingly appears to be an information service by definition,” the proposal states. “Can broadband internet users indeed access these capabilities? Are there other capabilities that a broadband internet user may receive with service? If broadband internet access service does not afford one of the listed capabilities to users, what effect would that have on our statutory analysis? More fundamentally, we seek comment on how the commission should assess whether a broadband provider is ‘offering’ a capability. Should we assess this from the perspective of the user, from the provider, or through some other lens?”

In addition to that reclassification, the FCC proposal also seeks to return the classification of mobile broadband to its private mobile-service status. The proposal also seeks to eliminate the internet standard altogether.

The FCC seeks public comment on whether bright-line rules in the 2015 order should be maintained, modified or removed altogether. It also seeks comments for its plans to initiate a cost-benefit analysis program that helps to determine whether regulation on ISPs are required at all.

Comments are due on or before July 17, and reply comments are due on or before Aug. 16. They can be submitted online or by mail.

The American Civil Liberties Union has been closely monitoring the FCC’s moves to upend net neutrality rules. During a phone interview Friday, Michael Macleod-Ball, chief of staff at the ACLU’s Washington, D.C. office, said the 60-day comment period should be extended given the vast impact posed by the proposed rule.

Further, a history of “horsing around” that has plagued the commission’s comment page also warrants an extension, he said.

In the run up to the FCC’s May 18 vote, HBO’s John Oliver, host of the satirical news program “Last Week Tonight,” set off a chain of reactions which led to the “horsing around” Macleod-Ball referenced.

Oliver instructed viewers to submit comments to the FCC urging the agency to keep net neutrality rules intact. Later that night, the commission’s comment site crashed and the FCC claimed within hours that the takedown was caused by hackers.

“These were deliberate attempts by external actors to bombard the FCC’s comment system with a high amount of traffic to our commercial cloud host,” David Bray, the agency’s chief information officer, said in a May 9 statement.

Sen. Brian Schatz, D.-Hawaii, and Sen. Al Franken, D-Minn., followed up with the FCC in a May 31 letter, asking acting FBI Director Andrew McCabe to launch a formal investigation into the hack. The senators also asked the FCC to respond to a congressional inquiry.

“We’ve been seeing horsing around with preliminary comments and an effort to submit improperly attributed comments,” Macleod-Ball said. “With that kind of funny business going on in the early part of the comment period, it is unclear if someone is just messing with FCC’s system or if it’s been hacked. That factor and the vast interest both argue in favor of extending the comment period.”

Macleod-Ball also gave his take on the move to reclassify the internet from a public utility to an information service.

“That kind of rulemaking comes much closer to being arbitrary and capricious,” he said, adding that it was “pure political motivation” that drove the agency’s decision to pursue the new rules.

While it’s easy for the public to become bogged down in the mundane titles and classifications, Macleod-Ball offered a simple analogy.

“The core service that is being provided by the ISPs is this ‘telephone-like’ ability to communicate, to send and receive communication. From some other party, there may be other things going on and most of those are already covered under reasonable network management services,” he said. “[The internet] is different from telephones, yes, but the core service being provided, whether you’re an individual or whomever, all users get to get on here and get access to all of the information on there.”

Macleod-Ball added, “Just as you can pick up your phone and call whomever you want to call and the phone company doesn’t say, ‘No, we won’t let you talk to this person, but we will let you talk to these three people’ – that’s analogous to the same core services provided by ISPs.”